Before the Court is plaintiff's Motion for Summary Judgment on
the issues of liability. Plaintiff sues Local Union Number 1487
(hereafter Local) of the United Mine Workers of America and
certain individuals for damages allegedly incurred due to the
breaches of the collective bargaining agreement. The breaches
alleged are that the Local engaged in a strike or work stoppage
over arbitrable disputes in violation of the collective
bargaining agreement's arbitration provision. Liability is sought
to be imposed upon the Union under two theories: mass action and
common law agency. Before reaching the issue of whether any
material factual dispute exists, the Court will resolve the legal
issue of whether the mass action theory is still viable after the
Supreme Court's decision in Carbon Fuel Company v. Mine Workers,
444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979).

The Courts that have faced the issue of whether the mass action
theory survived Carbon Fuel have been anything but unanimous in
their conclusions. According to the mass action theory, the union
is liable for an unauthorized strike engaged in by a large number
of its members; the rationale behind the theory is that "large
groups of men do not act collectively without leadership and that
a functioning union must be held responsible for the mass action
of its members." Eazor Exp. Incorporated v. International
Brotherhood of Teamsters, 520 F.2d 951, 963 (3rd Cir. 1975). In
Carbon Fuel, the Court was faced with the issue of whether
International and District Unions could be liable for
unauthorized work stoppages or strikes if they failed to use all
reasonable means available to prevent or terminate the stoppages
or strikes. The liability of the local unions was not at issue.
After examining the liability Congress imposed upon labor
organizations under § 301 of the Labor Management Relations Act,
29 U.S.C. § 185 (1947), a unanimous Court concluded that the
legal responsibility of the unions was limited by common law
agency principles:
. . Congress gave careful attention to the problem
of strikes during the term of a collective-bargaining
agreement, but stopped short of imposing liability
upon a union for strikes not authorized, participated
in, or ratified by it. Rather to effectuate §
301(a), the Taft-Hartley Act provided in § 301(b)
that a union "shall be bound by the acts of its
agents," and in § 301(e) provided that the common
law of agency shall govern "in determining whether
any person is acting as an `agent' of another
person." In explaining § 301(e), Senator Taft
stated, 93 Cong.Rec. 4022 (1947):

"If the wife of a man who is working at a plant
receives a lot of telephone messages, very likely it
cannot be proved that they came from the union. There
is no case then. There must be legal proof of agency
in the case of unions as
in the case of corporations . . ." (Emphasis
supplied).

444 U.S. at 217, 100 S.Ct. at 414 (emphasis supplied).

The Court also rejected the argument that an obligation of the
union to use all reasonable means to prevent or end an
unauthorized strike should be implied from the collective
bargaining agreement provision obligating the union to "maintain
the integrity of this contract." The Court stated that since an
earlier version of the collective bargaining agreement containing
a clause obligating the union to use their best efforts to
prevent work stoppages was purposely deleted by the union, the
parties agreed not to impose such a duty on the union. 444 U.S.
at 220, 100 S.Ct. at 415. The Court also noted that after the
deletion, but before the 1968 or 1971 agreements were enacted,
the contracts were construed as not imposing liability on the
unions for wildcat strikes; had not this been the parties'
understanding, the parties had ample opportunity to change the
agreement. 444 U.S. at 222, 100 S.Ct. at 416. (The Court also
noted the Seventh Circuit has adopted a similar reading of the
contracts since 1971. 444 U.S. at 222 n. 10, 100 S.Ct. at 416 n.
10, citing Old Ben Coal Corporation v. Local Union No. 1487,
457 F.2d 162 (7th Cir. 1972).) The Court stressed the strong
Congressional policy in favor of unrestricted collective
bargaining, and noted the union's hesitation "to surrender its
freedom to decide what measures to take or not to take in dealing
with unauthorized strikes." 444 U.S. at 219-220, 100 S.Ct. at
415. Thus, the Court implied that parties to the collective
bargaining agreement could have bargained for greater union
liability than that imposed by § 301.

Cases subsequent to Carbon Fuel which have held that the mass
action theory is still viable have sought to limit the Court's
decision as inapplicable to local unions, since local liability
was not in issue in the case. See Consolidation Coal Company v.
Local 1702, United Mine Workers, 709 F.2d 882, 884-885 (4th Cir.
1983) cert. denied, ___ U.S. ___, 104 S.Ct. 487, 78 L.Ed.2d 683
(1983); New York Time Company v. Newspaper & Mail Deliveries'
Union of New York and Vicinity, 517 F. Supp. 662, 666 (S.D.N Y
1981); Keebler Company v. Bakery Workers Local 492-A, 104 LRRM
2625, 2628 (1980), or have applied or acknowledged the principles
of mass action theory without discussing the implication of
Carbon Fuel. See Alabama By-Products v. Local No. 1881, Etc.,
690 F.2d 831, 833 (11th Cir. 1982); North River Energy Corp. v.
United Mine Workers of America, 664 F.2d 1184, 1193-94 (11th Cir.
1981); Dresser Industries v. United Steel Workers of America
Local 4601, 110 LRRM 2661, 2664 (W.D.N.Y. 1981). In the Court's
opinion, the better reasoned cases hold that the rationale of
Carbon Fuel cannot be limited to International or District
Unions.

Although the Court addressed only the cases involving
the international and district unions, the
applicability of the rule announced by the Court does
not depend on the level of union hierarchy involved.
In stating that `Congress limited the responsibility
of unions for strike, in breach of contract cases
when the union may be found responsible according to
common law of agency,' 444 U.S. at 216, 100 S.Ct. at
413 (emphasis added), the Court fashioned a rule of
union liability without differentiating among local,
district or international unions. And no such
distinction is made in the statutory language or in
the legislative history relied on by the Court.

The Court's decision in this regard is also buttressed by
references to Carbon Fuel in the subsequent case of Complete Auto
Transit, Inc. v. Reis, 451 U.S. 401, 101 S.Ct. 1836, 68 L.Ed.2d
248 (1980). In Complete Auto Transit, the Supreme Court was faced
with the issue of whether a cause of action against union members
existed for breach of a no-strike agreement. The Court concluded
as follows:

The legislative debates and the process of
legislative amendment demonstrate that Congress
deliberately chose to allow a damages remedy for
breach of the no-strike provision of a collective
bargaining agreement only against unions, not
individuals, and, as to unions, only when they
participated in or authorized the strike. See Carbon
Fuel Co. v. Mine Workers, 444 U.S. 212, 216 [100
S.Ct. 410, 413, 62 L.Ed.2d 394] (1979). Congress
itself balanced, the competing advantages and
disadvantages inherent in the possible remedies to
combat wildcat strikes, and `we are strongly guided
by its choice.'

451 U.S. at 416, 101 S.Ct. at 1845 (emphasis supplied). The
Court's language in the above quoted material broadly referring
to all unions, not just those on the international or district
level, is indicative that Carbon Fuel was meant to apply to
locals as well. Accordingly, the Court holds the mass action
theory is no longer viable as a separate theory of liability.
However, the Court believes it would be unrealistic to hold that
the mass action of a large number of union members is irrelevant
when making a determination as to a Local Union's liability. The
rationale behind the mass-action theory is that "large groups of
men do not act collectively without leadership." Eazor, supra at
963. Thus, the mass action theory has in actuality served a legal
device by which agency liability on the part of the Local Union
was presumed where mass action by its members occurred. The
dictates of Carbon Fuel would seem to preclude a conclusive
presumption of this sort. However, logic would not exclude
evidence of a mass action as being irrelevant to an inference of
agency liability on the part of the Local under the principles of
Carbon Fuel. Plaintiff may introduce evidence of mass action and
argue to the jury that such mass action could not have occurred
absent ratification, authorization or participation by union
agents acting within the scope of their authority. Defendant may
introduce evidence and argument to the contrary. What weight
should be given to any such evidence of mass action as indicative
of agency liability will be for the jury to determine, depending
on the facts of the case.

Thus, the Court will proceed to examine whether summary
judgment is appropriate solely on an agency theory. Under the
theory of common-law agency espoused by the Supreme Court, a
union is liable only for strikes which it authorized,
participated in, ratified or encouraged. Consolidated Coal,
supra, 725 F.2d 1258 at 1263. The "all reasonable means" test
which plaintiff refers to was rejected by Carbon Fuel and has no
place in a theory of common law agency. However, whether action
or lack of action by the union is indicative of agency liability
is a question for the jury.

A helpful summary of agency liability is found in the case of
Central Appalachian Coal Company v. United Mine Workers of
America, 376 F. Supp. 914, 922-923 (S.D.W.Va. 1974):

The Court would begin by pointing out that the law
does not generally hold a union organization
responsible for the unsanctioned acts of its
individual members. (citations omitted) Liability
under § 301 of the LMRA does not, however,
require union complicity in the form of an express or
official authorization or ratification. Rather, it is
sufficient that an authorized union agent has acted
in a manner tending to instigate, encourage, condone
or otherwise support the breach activity (citations
omitted).

It is necessary, of course, that the union agent or
agents involved have been acting within the scope of
their authority and on behalf of each of the union
affiliates charged.

Thus, in the present case, plaintiff must show as a matter of
law, that union agents acting within the scope of their authority
authorized, participated in, ratified or encouraged the strike.
In the Court's opinion, plaintiff has not met its burden of
proof.

Initially, the Court notes that plaintiff liberally refers to
statements in depositions which it did not provide to the Court.
Thus, the evidentiary basis for the motion is lacking. However,
even assuming that the statements referred to were in fact made,
union liability is not clear as a matter of law. The two cases
cited by plaintiff as supportive of its position do not stand for
the proposition that certain actions or inactions by the union
will result in its liability as a matter of law. Rather, in the
circumstances of the cases before them, the Courts found union
liability due to the fact that efforts by union officials to end
the strike were "foreseeably ineffective." Consolidation Coal
Company v. Local 1702 UMWA, supra, at 886; United States Steel
Corp. v. UMWA, 598 F.2d 363, 366 (5th Cir. 1979). This decision
was made in United States Steel in the context of a mine which
had wildcat strikes on a frequency of one every other month for
the previous five years. The sufficiency of the union's actions
to avoid liability was viewed in light of the past strike
history. See Consolidation Coal Company v. International Union,
Etc., 500 F. Supp. 72, 76 (D.Utah 1980). Plaintiff has not
introduced similar evidence in support of its motion (and
defendants contend such evidence would be inadmissable in any
event) except to refer to a 10 year old Seventh Circuit opinion
which detailed strike frequency of Local 1487 in the early
Seventies. Whether such evidence is relevant to actions in the
1980's is highly doubtful. The Fourth Circuit in Consolidation
Coal Co., supra, relied heavily on the facts of United Steel to
also hold that union efforts to end the strike were foreseeably
ineffective without any indication that they were viewed in light
of past strike activity. Furthermore, there is evidence in the
present case that greater efforts were made by the union in the
work stoppages at issue here than was the case in Consolidation
Coal Co., supra, 709 F.2d 882. See portions of depositions cited
in defendants' Memorandum, at p. 34-35. It is also important to
note that some of the actions not taken by the Union in
Consolidation Coal, supra, 709 F.2d at 886, and relied on by the
Court to impose liability have been viewed by other Courts as
inconclusive to demonstrate ratification, authorization,
encouragement, etc. See North River Energy Corporation, supra, at
1192 (failure of union officials to work cannot be construed as
authorization); United Steel Workers of America v. Lorain, Etc.,
616 F.2d 919, 923 (6th Cir. 1980) (failure to discipline strikers
did not support inference of ratification). Neither does the
Court find that the plaintiff has
carried its burden when the alleged mass action of its members is
also considered as proof of defendants' agency liability.
Plaintiffs arguments in this regard are conclusory and, in the
Court's opinion, should be presented to the jury for its
determination in light of all the circumstances in the case.

The Court may not try disputed fact questions on the basis of
evidence before it (Carter v. Williams, 361 F.2d 189, 194 (7th
Cir. 1966)) and all inferences drawn from such evidentiary
materials must be in favor of the non-moving party. Cedillo v.
International Association of Bridge, Etc., 603 F.2d 7, 11 (7th
Cir. 1979). Applying this standard, the Court does not find
summary judgment appropriate. In sum, the Court believes the
question of union liability for the strikes at issue is best
resolved by the jury at trial where a clearer picture of the
exact circumstances involved and the reasonableness of union's
actions or inactions in light of those circumstances may be had.

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